BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 1328       Hearing Date:    July 14, 2015    
          
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          |Author:    |Weber                                                |
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          |Version:   |July 8, 2015                                         |
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          |Urgency:   |No                     |Fiscal:    |No               |
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          |Consultant:|MK                                                   |
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          Subject:  Discovery:  Prosecutorial Duty to Disclose Information  
 
                                          



          HISTORY

          Source:   California Attorneys for Criminal Justice

          Prior Legislation:AB 885 (Ammiano) Vetoed 2014

          Support:  (all support to prior version of the bill) California  
                    Public Defenders Association; Legal Services for  
                    Prisoners with Children

          Opposition:(all opposition to prior version of the  
                    bill)Association of Deputy District Attorneys;  
                    Association for Los Angeles Deputy Sheriffs;  
                    California Association of Code Enforcement Officers;  
                    California College and University Police Chiefs  
                    Association; California Narcotic Officers Association;  
                    California State Sheriffs' Association;  California  
                    Police Chiefs Association; Judicial Council;  Los  
                    Angeles County District Attorney's Office;  Los  
                    Angeles Police Protective League; Office of the San  
                    Diego County District Attorney; Riverside Sheriffs  
                    Association








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          Assembly Floor Vote:                 41 - 36


          PURPOSE

          The purpose of this bill is to require a court to inform the  
          State Bar if it finds that a prosecutor deliberately and  
          intentionally withheld relevant exculpatory materials or  
          information in violation of the law and to allow the court on  
          its own motion to disqualify a person or an office from  
          prosecuting a case when it finds a prosecutor deliberately and  
          intentionally withheld relevant exculpatory materials under  
          specified circumstances.
          
          Existing law requires the prosecuting attorney to disclose to  
          the defendant or his or her attorney all of the following  
          materials and information, if it is in the possession of the  
          prosecuting attorney or if the prosecuting attorney knows it to  
          be in the possession of the investigating agencies: 
                 The names and addresses of persons the prosecutor  
               intends to call as witnesses at trial;
                 Statements of all defendants; 
                 All relevant real evidence seized or obtained as a part  
               of the investigation of the offenses charged;
                 The existence of a felony conviction of any material  
               witness whose credibility is likely to be critical to the  
               outcome of the trial; and 
                 Any exculpatory evidence. 
                 Relevant written or recorded statements of witnesses or  
               reports of the statements of witnesses whom the prosecutor  
               intends to call at the trial, including any reports or  
               statements of experts made in conjunction with the case,  
               including the results of physical or mental examinations,  
               scientific tests, experiments, or comparisons which the  
               prosecutor intends to offer in evidence at the trial.  
               (Penal Code Section 1054.1.) 

          Existing law requires the defendant and his or her attorney to  
          disclose to the prosecuting attorney: 

                 The names and addresses of persons, other than the  
               defendant, he or she intends to call as witnesses at trial,  
               together with any relevant written or recorded statements  
               of those persons, or reports of the statements of those  








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               persons, including any reports or statements of experts  
               made in connection with the case, and including the results  
               of physical or mental examinations, scientific tests,  
               experiments, or comparisons which the defendant intends to  
               offer in evidence at the trial; and, 
                 Any real evidence which the defendant intends to offer  
               in evidence at the trial. (Penal Code § 1054.3(a).) 

          Existing law states, before a party may seek court enforcement  
          of any of the required disclosures, the party shall make an  
          informal request of opposing counsel for the desired materials  
          and information.  If within 15 days the opposing counsel fails  
          to provide the materials and information requested, the party  
          may seek a court order.  Upon a showing that a party has not  
          complied with the disclosure requirements and upon a showing  
          that the moving party complied with the informal discovery  
          procedure provided in this subdivision, a court may make any  
          order necessary to enforce the provisions of this chapter,  
          including, but not limited to, immediate disclosure, contempt  
          proceedings, delaying or prohibiting the testimony of a witness  
          or the presentation of real evidence, continuance of the matter,  
          or any other lawful order.  Further, the court may advise the  
          jury of any failure or refusal to disclose and of any untimely  
          disclosure. (Penal Code §1054.5(b).)

          Existing law allows a court to prohibit the testimony of a  
          witness upon a finding that a party has failed to provide  
          materials as required only if all other sanctions have been  
          exhausted.  The court shall not dismiss a charge unless required  
          to do so by the Constitution of the United States. (Penal Code §  
          1054.5(c).)

          Existing law provides that the required disclosures shall be  
          made at least 30 days prior to the trial, unless good cause is  
          shown why a disclosure should be denied, restricted, or  
          deferred.  If the material and information becomes known to, or  
          comes into the possession of, a party within 30 days of trial,  
          disclosure shall be made immediately, unless good cause is shown  
          why a disclosure should be denied, restricted, or deferred.  
          "Good cause" is limited to threats or possible danger to the  
          safety of a victim or witness, possible loss or destruction of  
          evidence, or possible compromise of other investigations by law  
          enforcement. (Penal Code § 1054.7.) 









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          This bill provides that if a court determines that a prosecuting  
          attorney has deliberately and intentionally withheld relevant  
          exculpatory materials or information in violation of the law,  
          the court shall inform he State Bar of California of the  
          violation if the prosecuting attorney acted in bad faith and the  
          impact of the withholding contributed to a guilty verdict,  
          guilty or nolo contendere plea, or if identified before the  
          conclusion of the trial seriously limited the ability of a  
          defendant to present a defense.

          This bill provides that a hearing to consider with a prosecuting  
          attorney or his or her office should be disqualified shall be  
          initiated only upon the court's own motion.

          This bill provides that upon its own motion, a court may  
          disqualify an individual prosecuting attorney from a case if the  
          court determines that the prosecuting attorney deliberately and  
          intentionally withheld relevant exculpatory materials or  
          information in that case in violation of the law and that the  
          prosecuting attorney acted in bad faith.

          This bill provides that the court may also disqualify the  
          prosecuting attorney's office if there is sufficient evidence  
          that other employees of the prosecuting attorney's office  
          knowingly participated in or sanctioned the intentional  
          withholding of the relevant exculpatory materials or information  
          and that withholding is part of a pattern and practice of  
          violations.

          This bill provides that this section does not limit the  
          authority or discretion of the court or other individuals to  
          make reports to the State Bar regarding the same conduct or  
          otherwise limit other available legal authority, remedies, or  
          actions.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  








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          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  








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               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.

          COMMENTS
          1. Need for This Bill

          According to the sponsor:

               The United States Supreme Court has made clear that  
               prosecutors are required by the Constitution to  
               provide the defense with all evidence that may be  
               favorable to a defendant.  Prosecutors are not  
               independent parties who may "win at all costs."  
               Instead, they are officers of the court whose  
               exclusive obligation is to pursue the "truth" and to  
               ensure due process of the law."  A prosecutor that  
               withholds evidence on demand of an accused which, if  
               made available, would tend to exculpate him or reduce  
               the penalty helps shape a trial that bears heavily on  
               the defendant.  That casts the prosecutor in the role  
               of an architect of a proceeding that does not comport  
               with standards of justice." Brady, 373 U.S. 83, 88.   
               In addition, prosecutors are required to ensure that  
               law enforcement officers involved in the case also  
               provide all evidence in their possession that may be  
               favorable to the defense.

               There is a growing problem with prosecutorial  
               misconduct throughout the country and in California.  
               As recently as this February, 9th Circuit Judge Alex  
               Kozinski has described rampant Brady violations as a  
               growing "epidemic." Kozinski says that judges must put  
               a stop to such injustice. CACJ does not see sufficient  
               action by judges, judicial council, or the CA Supreme  
               Court; as such, CACJ believes there is a necessity to  
               take legislative actions to address this injustice of  
               "epidemic" proportions to the defendant in California.

          2.  Brady and a Fair Trial
          
          In a criminal trial, a defendant is presumed innocent and the  
          prosecution has the burden to prove beyond a reasonable doubt  
          that the defendant is guilty.  In order to ensure a fair trial,  
          the prosecuting attorney has a constitutional and statutory duty  








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          to disclose specified information to the defendant.  The jury  
          instructions on reasonable doubt states, "Proof beyond a  
          reasonable doubt is proof that leaves you with an abiding  
          conviction that the charge is true.  The evidence need not  
          eliminate all possible doubt because everything in life is open  
          to some possible or imaginary doubt.  In deciding whether the  
          people have proved their case beyond a reasonable doubt, you  
          must impartially compare and consider all the evidence that was  
          received throughout the entire trial.  Unless the evidence  
          proves the defendant[s] guilty beyond a reasonable doubt,  
          (he/she/they) (is/are) entitled to an acquittal and you must  
          find (him/her/them) not guilty." (CALCRIM No. 103.) 
          In the landmark case of Brady v. Maryland, 373 U.S. 83 (1963),  
          the U.S. Supreme Court held that where a prosecutor in a  
          criminal case withholds material evidence from the accused  
          person that is favorable to the accused, this violates the Due  
          Process Clause of the 14th Amendment.  (Ibid at 87, see also  
          Giglio v. United States, 405 U.S. 150 (1972).)  Brady and Giglio  
          impose on prosecutors a duty to disclose to the defendant  
          material evidence that would be favorable to the accused.  The  
          Supreme Court in a later case explained "[u]nder the Due Process  
          Clause of the Fourteenth Amendment, criminal prosecutions must  
          comport with prevailing notions of fundamental fairness. We have  
          long interpreted this standard of fairness to require that  
          criminal defendants be afforded a meaningful opportunity to  
          present a complete defense.  To safeguard that right, the Court  
          has developed 'what might loosely be called the area of  
          constitutionally guaranteed access to evidence.' [Citing United  
          States v. Valenzuela-Bernal (1982) 458 U.S. 858, 867.]  Taken  
          together, this group of constitutional privileges delivers  
          exculpatory evidence into the hands of the accused, thereby  
          protecting the innocent from erroneous conviction and ensuring  
          the integrity of our criminal justice system." (California v.  
          Trombetta (1984) 467 U.S. 479, 485.)

          Even in the absence of a specific request, the prosecution has a  
          constitutional duty to turn over exculpatory evidence that would  
          raise a reasonable doubt about the defendant's guilt. (United  
          States v. Agurs (1996) 427 U.S. 97,112.) Generally, a specific  
          request is not necessary for parties to receive discovery,  
          however, an informal discovery request must be made before a  
          party can request formal court enforcement of discovery. (Penal  
          Code Section 1054.5(b).)









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          3.  Sanctions for "Brady" Violations
          
          The prosecuting attorney is required, both constitutionally and  
          statutorily, to disclose specified information and materials to  
          the defendant.  In California, the defendant is also statutorily  
          required to disclose specified information and materials to the  
          prosecution. (Penal Code §1054. 3(a).)  Failure to divulge this  
          information may result in a variety of sanctions being imposed  
          on the prosecution including, e.g., striking a witnesses'  
          testimony or complete reversal of a conviction.  "Reversal is  
          required when there is a 'reasonable possibility' that the error  
          materially affected the verdict."  (United States v. Goldberg,  
          582 F.2d 483, 488 (9th Cir. 1978), cert. denied, 440 U.S. 973,  
          59 L. Ed. 2d 790, 99 S. Ct. 1538 (1979).)  A federal court  
          recently described why this obligation is imposed:  "Prosecutors  
          are entrusted with the authority and responsibility to protect  
          public safety and uphold the integrity of the judicial system.   
          They perform the latter, in part, by ensuring that criminal  
          defendants are offered all potentially exculpatory or impeaching  
          information."  (Lackey v. Lewis County, 2009 U.S. Dist. LEXIS  
          94674 (D. Wash. 2009).) The court may also advise the jury of  
          any failure or refusal to disclose and of any untimely  
          disclosure. (Penal Code Section 1054. 5(b).) Under existing law,  
          courts have the discretion in determining the appropriate  
          sanction that should be imposed because of the untimely  
          disclosure of discoverable records and evidence. 

          While sanctions exist for "Brady" violations it is unclear how  
          effective they have been.  According to a Yale Law Journal  
          article, "[a] prosecutor's violation of the obligation to  
          disclose favorable evidence accounts for more miscarriages of  
          justice than any other type of malpractice, but is rarely  
          sanctioned by courts, and almost never by disciplinary bodies."  
          The very nature of Brady violations-that evidence was  
          suppressed-means that defendants learn of violations in their  
          cases only fortuitously, when the evidence surfaces through an  
          alternate channel.  Nevertheless, a recent empirical study of  
          all 5760 capital convictions in the United States from 1973 to  
          1995 found that prosecutorial suppressions of evidence accounted  
          for sixteen percent of reversals at the state postconviction  
          stage.  A study of 11,000 cases involving prosecutorial  
          misconduct in the years since the Brady decision identified 381  
          homicide convictions that were vacated "because prosecutors hid  
          evidence or allowed witnesses to lie." (Footnotes omitted;  








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          Dewar, A Fair Trial Remedy for Brady Violations, Yale Law  
          Journal (2006) p. 1454.)

               When a prosecutor is inclined against disclosing a  
               piece of arguably favorable evidence, few  
               considerations weigh in favor of disclosure. Trial  
               courts are reticent to grant motions to compel  
               disclosure of alleged Brady evidence, examine  
               government files, or hold prosecutors in contempt.  
               Defendants only rarely unearth suppressions. And, even  
               when they do, their convictions are rarely overturned  
               because they face a tremendous burden on appeal:  
               showing that the suppression raises a 'reasonable  
               probability that, had the evidence been disclosed to  
               the defense, the result of the proceeding would have  
               been different.' Finally, lawyers' professional  
               associations do not frequently discipline prosecutors  
               for even the most egregious Brady violations.  
               (Footnotes omitted; Id. at p. 1456.) 

          The author of the article proposed:

               [W]hen suppressed favorable evidence comes to light  
               during or shortly before a trial, the trial court  
               should consider instructing the jury on Brady law and  
               allowing the defendant to argue that the government's  
               failure to disclose the evidence raises a reasonable  
               doubt about the defendant's guilt. . . .[I]nstead of  
               curing the Brady violation through reversal on appeal,  
               the remedy corrects the trial itself.  In contributing  
               to a jury's decision to acquit, the remedy would  
               provide more immediate relief than a postconviction  
               reversal.  Yet, because the remedy would not free or  
               even grant a new trial to defendants of whose guilt the  
               government has sufficient evidence, the remedy would  
               not run afoul of those who decry the social costs of  
               other 'punishments' for prosecutors, such as  
               overturning convictions or dismissing charges.  
               (Footnotes omitted; Id. at pp. 1456-1457.) The remedy  
               would exist primarily for the benefit of defendants  
               when the government's tardiness or failure to disclose  
               favorable evidence permanently prejudiced the defense.  
               Permanent prejudice might consist of the disintegration  
               of tangible evidence or the death or disappearance of a  








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               witness or alternative suspect.  In such cases, neither  
               granting a continuance for further investigation nor  
               the fact that the defendant may be able to make some  
               use of the belatedly disclosed evidence is a sufficient  
               remedy. (Footnotes omitted; Id. at p. 1458.) 

          4.  CALCRIM 306 Jury Instruction
          
          In addition to sanctions, untimely disclosure of required  
          evidence is addressed in the CALCRIM 306 jury instruction, which  
          reads in relevant part: 

               Both the People and the defense must disclose their  
               evidence to the other side before trial, within the  
               time limits set by law.  Failure to follow this rule  
               may deny the other side the chance to produce all  
               relevant evidence, to counter opposing evidence, or to  
               receive a fair trial. 

               An attorney for the (People/defense) failed to  
               disclose: _________________  [within the legal time period]. 

               In evaluating the weight and significance of that  
               evidence, you may consider the effect, if any, of that  
                                                                                         late disclosure. 

               "[However, the fact that the defendant's attorney  
               failed to disclose evidence [within the legal time  
               period] is not evidence that the defendant committed a  
               crime.] ?

          5.  Report to the State Bar
          
          Under this bill, if a court determines that a prosecuting  
          attorney has deliberately and intentionally withheld  
          relevant exculpatory materials or information in violation  
          of the law and that violation was in bad faith and the  
          impact of withholding contributed to a guilty verdict,  
          guilty or nolo contendere plea or seriously limited the  
          ability of the defendant to present a defense then the  
          court shall report the attorney to the State Bar.

          6.  Disqualification of the Attorney or the Office 








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          This bill provides that in a situation where the court  
          determines that the prosecuting attorney deliberately and  
          intentionally withheld relevant exculpatory materials or  
          information in violation of the law and when the  
          prosecuting attorney acted in bad faith, the court on its  
          own motion may disqualify the individual prosecuting  
          attorney from a case.

          The bill also allows the court to disqualify the  
          prosecuting attorney's office if there is sufficient  
          evidence that other employees of the prosecuting attorney's  
          office knowingly participated in or sanctioned the  
          intentional withholding of the relevant exculpatory  
          materials or information and that withholding was part of a  
          pattern and practice of violations.


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